Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 171 of 2016· [2018] KEELRC 178 (KLR)

Anne Unice Wandia Muriithi v M-Kopa Kenya Limited [2018] KEELRC 178 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2018
MMM. Mbaru
2,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that a signed 'final dues' declaration cannot block an unfair termination claim, awarding an employee Ksh.320,000.

What this practically means

#

Executive summary

#
The claimant was employed by the respondent on 6th April 2015 as a Service Centre Manager on a seven-month fixed-term contract at a gross monthly salary of Ksh.40,000, later renewed for twelve months. On 7th March 2016 the respondent terminated her employment on grounds of poor performance following a Performance Improvement Plan, without a hearing. The claimant sought house allowance, payment for the unexpired term of eight months, pay for days worked, annual leave, compensation and costs. The respondent defended the claim on the basis of justifiable termination for poor performance under contractual notice provisions, payment of terminal dues under a signed declaration of final dues, and estoppel, relying on Coastal Bottlers Limited v Kiamthi Mithika. The court framed two issues: whether the declaration of final dues absolved the respondent, and whether the remedies were due. It distinguished Coastal Bottlers, holding that section 35(4) of the Employment Act preserves the right to dispute the fairness of termination and that Article 41 constitutional rights cannot be removed by discharge agreements; the declaration was also raised without pleading. On the merits, the court found the termination unfair because the claimant was never given a capability hearing or review after the PIP, contrary to the mandatory section 41. House allowance, leave, days worked and notice pay claims failed as already paid or barred by the all-inclusive gross salary. The court awarded the claimant Ksh.320,000 for the unexpired eight months of the contract under section 49, plus costs of the suit.

Key legal issues

#
01

Whether a signed declaration of final dues estops an employee from further claims

Holding

No. The declaration was raised only at submissions stage without being pleaded, and in any event statutory and constitutional rights to dispute unfair termination survive a discharge clause

Reasoning

The court distinguished Coastal Bottlers as arising from redundancy, held section 35(4) of the Employment Act preserves the employee's right to dispute lawfulness or fairness of termination, and relied on Mohamed Kafafa Abduba. Rights under Article 41 of the Constitution cannot be negated by discharge agreements. The defence was also not pleaded, denying the claimant a chance to respond.

p. 3
02

Whether the termination of the claimant's employment was fair

Holding

The termination was unfair; the claimant was not given an opportunity to defend her performance before the adverse verdict

Reasoning

Section 41 of the Employment Act requires an employer to explain reasons and hold a hearing before terminating on poor performance. The respondent could not explain the deterioration in ratings and terminated without a review meeting after the PIP. Authorities confirm appraisal must involve the employee's active participation and section 41 is mandatory; a flawed process renders termination unfair under sections 41 and 45.

p. 4
03

Whether the claimant was entitled to payment for the unexpired term of the fixed-term contract

Holding

Yes, awarded Ksh.320,000.00 for the 8-month unexpired term under section 49 of the Employment Act

Reasoning

Following the finding of unfair termination, section 49 permits multiple awards including payment of the unexpired period of a fixed-term contract. The court awarded the 8 months remaining at Ksh.40,000 per month, considering that this addresses the unfair termination.

p. 4
04

Whether house allowance was payable over and above the gross salary

Holding

No; the gross salary was all-inclusive and no separate house allowance was due

Reasoning

The contracts of employment spelt out the gross salary payable which was all-inclusive. To claim other dues outside those provisions on the basis that the pay slip set out a basic pay would negate the foundation of the agreed terms and conditions of employment.

p. 4

Legal principles established

#
  • Constitutional rights to fair labour practices cannot be removed from the workplace by discharge agreements, clauses or declarations
  • Termination for poor performance must be preceded by a capability hearing under section 41 of the Employment Act
  • A fixed-term contract protected in law cannot be invalidated by a discharge clause; employment must terminate within the law

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent with the award of Ksh.320,000.00 being payment for the unexpired term of the fixed-term contract
  2. 2.Costs of the suit awarded to the claimant

Authorities

#

Legislation

  • Employment Actsection 31
  • Employment Actsection 35(4)
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 46
  • Employment Actsection 49
  • Evidence Actsection 107(1)
  • Constitution of Kenya, 2010Article 41

Cases cited (6)

  • Coastal Bottlers Limited versus Kiamthi Mithika
    [2018] eKLR
  • Jennifer Nyambura Kamau versus Humphrey Mbaka
    [2013] eKLR
  • Mohamed Kafafa Abduba versus Colour Crops Limited Cause No.139 of 2015
  • Jane Wairimu Machira versus Mugo Waweru and Associates
    [2012] eKLR
  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) versus Stanley Kinyanjui and Magnate Ventures Ltd, Cause No. 273 of 2010
  • Kenya Union of Commercial Food and Allied Workers Versus Meru North Farmers Sacco Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act, 2007 (unfair termination claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Anne Unice Wandia Muriithi v M-Kopa Kenya Limited [2018] KEELRC 178 (KLR)", Case Analysis (2018). Cause No. 171 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/178/eng@2018-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.